Sheng v. M&T Bank Corporation et al

Filing 65

ORDER denying without prejudice 44 Motion in Limine. Signed by Hon. Hugh B. Scott on 10/10/2014. (JRA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
Jia Sheng,
Plaintiff,
Hon. Hugh B. Scott

12CV11031
v.
Order

M&T Bank Corporation et al.,
Defendant.
_________________________________________
Before the Court is the plaintiff’s motion in limine (Docket No. 44).

Background
The plaintiff, Jia Sheng (“Sheng”), brings this action claiming that M&T Bank
Corporation (“M&T”)2 violated her rights under the Family Medical Leave Act, 29 U.S.C.
§2601 et seq, (“FMLA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000 et seq.
(“Title VII”), the Americans with Disability Act of 1990, 42 us §12101 et seq. (“ADA”), the
California Family Rights Act, Cal. Gov. Code §12945.2 (“CFRA”), the California Pregnancy
Disability Leave Law, Cal. Gov. Code §12945(a) (“PDLL”), the New York State Human Rights

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The parties have consented to the jurisdiction of the Magistrate Judge (Docket No. 39).

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The named defendants are “M&T Bank Corporation, and Manufacturers & Traders
Trust Company d/b/a M&T Bank.” The defendants are referred to collectively herein as “M&T”
or “the Bank.”
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Law, N.Y. Executive Law §290 et seq. (“NYSHRL”), and the Califorina Fair Employment and
Housing Act, Cal. Gov. Code §12940 et seq. (“FEHA”). (Docket No. 21).
Sheng currently resides in California. In January of 2010, the plaintiff was employed by
M&T in Buffalo, New York as a Quality Control Team Lead. In March of 2011, she had decided
to resign her position with M&T to relocate to California where because her husband had
obtained a job there. According to Sheng, her supervisor, Monica Holcomb, convinced her not to
resign, but instead to work remotely from California. (Docket No. 21 at ¶¶13-16). Sheng agreed
to the remote work arrangement. In May of 2012, Sheng advised M&T that she was pregnant.
(Docket No. 21 at ¶ 18). The plaintiff claims that shortly thereafter she was asked to resubmit
documentation relating to her remote work arrangement (referred to as an “alternative work
arrangement” or “AWA”). Subsequently, on June 28, 2012, she was advised that M&T had
modified its AWA policy and that she would be required to be physically present in Buffalo at
least two days per week. (Docket No. 21 at ¶¶ 19-21). Sheng sought to get M&T to agree to
except her from the new requirement and provided M&T with a letter from her obstetrician
stating that she was not to fly during the remainder of her pregnancy. (Docket No. 21 at ¶¶23-27).
The plaintiff contends that M&T refused to make any accommodation, and on September 11,
2012, revoked her authorization to work remotely from California and demanded that she
permanently relocate to Buffalo. (Docket No. 21 at ¶ 29). Sheng states that because she could
not agree to relocate to Buffalo, M&T terminated her effective October 12, 2012. (Docket No. 21
at ¶¶ 30-31).
The defendants assert that the Bank’s Central Technology (“CT”) department, in which
Sheng was employed, underwent a significant reorganization in early 2012. Pursuant to that
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reorganization, on June 27, 2012 the Bank advised Sheng that all employees at Grade 12 and
above (which included the plaintiff) would have to be physically present in Buffalo at least two
days per week. M&T contends that the Bank also advised Sheng that they would pay for Sheng’s
travel and lodging costs for the trips to Buffalo. According to the defendants, after Sheng
submitted a complaint to the Bank through an attorney, M&T offered to allow the plaintiff to
continue to work remotely in California (not on the new initiative she had been working, but on
other work the Bank believed could be accomplished remotely) for the remainder of her
pregnancy and that her AWA arrangement would be revisited upon her return to work after any
pregnancy break. (Docket No. 47 at pages 2-3). The Bank argues that this offer was not
conditioned upon the plaintiff signing any release or waiver. (Docket No. 47 at page 5).3

Motion in Limine
The plaintiff has filed a motion in limine seeking to preclude the defendants from
introducing evidence that M&T made a verbal offer to the plaintiff on October 12, 2012, to
reinstate her employment and her remote AWA for the remainder of her pregnancy, contingent
upon the signing of a release and waiver of any claims against M&T. (Docket No. 46 at ¶ 4).
The plaintiff asserts that the Bank made similar offers to the plaintiff during the proceedings
before the Equal Employment Opportunity Commission (“EEOC”) and during the mediation
sessions relating to this litigation. The plaintiff states that she rejected each of the offers.
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M&T states that as an alternative, the Bank also offered Sheng a severance package.
The severance package, if the plaintiff chose to accept it, would have required her to sign a
release and waiver of claims. (Docket No. 47 at page 5).
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(Docket No. 46 at ¶¶5-8). Sheng argues that these offers should be precluded as offers to
compromise under Rule 408 of the Federal Rules of Evidence. (Docket No. 45 at page 3).
Generally, Rule 408 provides:
(a) Prohibited Uses. Evidence of the following is not
admissible--on behalf of any party--either to prove or disprove the
validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction:
(1) furnishing, promising, or offering--or accepting, promising to
accept, or offering to accept--a valuable consideration in
compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations
about the claim--except when offered in a criminal case and when
the negotiations related to a claim by a public office in the exercise
of its regulatory, investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another
purpose, such as proving a witness's bias or prejudice, negating a
contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution.
The Bank contends that its offer to reinstate the plaintiff was unconditional and that this
offer is admissible as relating to “another purpose” under Rule 408 – that is the tolling of
damages for back pay. (Docket No. 47 at pages 4-5). In Ford Motor Co. v. EEOC, 458 U.S. 219
(1982), the Supreme Court held that when an employer makes an unconditional offer to reinstate
an employee terminated as a result of discrimination, the employee's rejection of that offer
forecloses any claim for future front pay and tolls the continuing accrual of back-pay liability
under Title VII of the Civil Rights Act of 1964. Back pay is tolled as of the date of the
employee's rejection. If an unconditional offer for reinstatement tolls damages, evidence of that
unconditional offer must be admissible. The Second Circuit rejected the argument that such

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evidence was barred under Rule 408, stating that “[b]y definition, an unconditional offer may not
require the employee to abandon or modify [her] suit, and no such request was made by
defendants. The offer therefore cannot be considered an offer of settlement or compromise.”
Lightfoot v. Union Carbide Corp., 110 F.3d 898 (2d. Cir. 1997).
In light of the Supreme Court’s ruling in Ford Motor and the Second Circuit’s holding in
Lightfoot, the motion in limine to preclude introduction of such evidence is denied without
prejudice. A question of fact exists as to the unconditional nature of the reinstatement offer.
Further, the circumstances relating to the Bank’s offer of reinstatement are not fully present in
the record. The plaintiff characterizes the offer as being “verbal” by the Bank’s “legal counsel”
but does not otherwise identify who extended the offer on behalf of the Bank. The defendant’s
pretrial submissions list at least two witnesses who intend to offer testimonial evidence relating
to the unconditional offers of reinstatement, Sean Ronan and Martha D’Arcangelo (Docket No.
49 at page 3). Ronan is currently designated as the defendants’ counsel in this case. To the
extent that Ronan intends to proceed as both counsel and witness, the advocate-witness rule is
implicated. “It is well established that once representation is undertaken, a lawyer must
withdraw as advocate if it appears that he must testify on behalf of his own client.” Ramchair v.
Conway, 601 F.3d 66 (2d. Cir. 2010) quoting People v. Rivera, 172 A.D.2d 633, 568 N.Y.S.2d
435 (2d Dep't 1991); see also People v. Paperno, 54 N.Y.2d 294, 299-300, 445 N.Y.S.2d 119,
429 N.E.2d 797, 800 (1981) (“The advocate-witness rule ... generally requires the lawyer to
withdraw from employment when it appears that he ... will be called to testify regarding a
disputed issue of fact.”) (internal citations omitted). The rule is now codified in Rule 3.7(a) of the
New York Rules of Professional Conduct.
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The parties shall be prepared to address this issue at the pretrial conference on October
14, 2014.

Motion Requesting Judicial Notice of Form 10-K
The plaintiff has filed a motion seeking the Court to take judicial notice of the financial
information included in M&T’s Form 10-K filings with the Securities and Exchange
Commission (“SEC”) for the years 2010, 2011 and 2012. (Docket No. 53). The defendants shall
respond to the motion on or before October 17, 2014.
So Ordered.

/ s / Hugh B. Scott
United States Magistrate Judge
Western District of New York
Buffalo, New York
October 9, 2014

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